In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Earlier this year, a U.S. district judge threw out criminal charges against Clark County cattle rancher Cliven Bundy, his sons, and a co-defendant, citing “flagrant” and “outrageous” misconduct by Nevada prosecutors. But the allegations against the U.S. Attorney’s office — that key evidence was delayed or withheld — apply to the county’s local prosecutors as well, public defenders tell The Appeal.

Attorneys with the Office of the Clark County Public Defender say the county’s district attorney’s office frequently violates the law that governs the sharing of information, also known as “discovery.” While some oversights are accidental, explained public defender David Westbrook, others appear intentional. Pieces of evidence are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them],” he said.

To address the problem, the public defenders began to document cases involving observed violations and their outcomes. In 2017 alone, they recorded 28 cases in which county prosecutors turned over discovery — including jail calls, surveillance video, police reports and body camera footage, witness details, DNA and forensic test results, medical reports and other forms of evidence — within 30 days of trial. The gravity of these violations varied. In some cases, a late disclosure involved a large document dump on the defense ahead of trial. But four cases allegedly involved the late disclosure of exculpatory evidence, such as police notes about a victim who had previously made false allegations, a report from Child Protective Services, and witness interviews.

Sometimes, the office found, discovery was provided within one business day of a trial’s start date. In six of the 28 cases, evidence was not revealed until the trial had begun.

The state’s criminal statutes require prosecutors to disclose key evidence against a defendant early on in a case. They have to turn over defendant and witness statements in their possession at least five days before a defendant’s preliminary hearing. As a trial nears, prosecutors must continue to turn over additional evidence they have collected and plan to use, and Nevada law establishes deadlines for these disclosures. Both sides, for instance, have until 21 days before trial to disclose the summaries of what expert witness testimonies will be. They also have until 30 days before trial to disclose medical reports, test results, defendant and witness statements, and physical evidence, including relevant documents, if those are formally requested by the opposing side.

Failure to provide discovery before a deadline without the court’s permission — or not providing it at all — is a violation, and judges are authorized to sanction the responsible parties or prohibit them from presenting the evidence at trial.

Another public defender, Robert O’Brien, said his colleagues have lamented systemic discovery violations for years and raised concerns to judges and policy committees. But their grievances have largely fallen on deaf ears. “The response that we’ve encountered consistently is that we need to show that there’s a pattern or more than anecdotal evidence,” O’Brien said. “We usually would bring up the most egregious violations we could find and, generally, our district courts have refused to sanction the district attorney for it.”

The office found that judges responded to these late discovery disclosures in different ways. They allowed prosecutors to admit the evidence in three cases. Four cases were resolved with plea deals. Judges postponed 11 cases and allowed late discovery to be presented in three. Seven cases proceeded as normal.

With approximately 60,000 cases every year, a spokesperson for the district attorney’s office acknowledges that “the flow of discovery in each and every case will not be perfect.” But the office disputes claims that it doesn’t take discovery violations seriously. “We exercise good faith and due diligence in providing discovery in every case,” the spokesperson wrote in an email to The Appeal.

Yet public defenders maintain that discovery violations are ubiquitous and that little has been done to rectify the problem.

“I have never had a trial when there hasn’t been some kind of discovery violation,” Westbrook said. “Whether [defendants are] guilty or innocent, they’re still entitled to a fair trial.”

Clark County v. Mr. J

It’s easy to find examples in which late discovery derailed a case, many of which predate the public defenders’ study of the violations. On Sept. 30, 2013, the Las Vegas Metropolitan Police Department arrested and detained Mr. J (a pseudonym used at Westbrook’s request to protect his client’s identity). He was accused of entering a bar, demanding money from a female victim at knifepoint, forcing her into a separate room, and touching her breasts. The district attorney’s office charged him with robbery with the use of a deadly weapon, attempted sexual assault, and other charges, based on eyewitness identification. Mr. J denied any wrongdoing.

Court motions and hearing transcripts obtained by The Appeal show that, starting in October 2014, Westbrook specifically requested discovery related to how investigators received information from a confidential informant mentioned during an earlier hearing, as well as any potentially exculpatory evidence that could undermine the prosecution’s case. The presiding judge granted both requests during two separate discovery hearings that month, but Westbrook says he never received that discovery ahead of Mr. J’s trial in January 2015. Several transcripts from discovery hearings show that prosecutor Mary Kay Holthus actually pushed back against having to turn over information about the confidential informant’s tip, even going so far as to criticize Westbrook for not procuring the information himself. “I’m not his lackey,” she said in court.

The prosecution didn’t put up a fight when it came to disclosing exculpatory evidence requested by the defense. It confirmed that it would turn over the information — which it is obligated to do under the Nevada and U.S. constitutions — while noting that it wasn’t sure such evidence existed. For good measure, the judge granted Westbrook’s request for that material.

As Mr. J’s trial date approached, however, prosecutors ultimately told Westbrook that they had turned over everything in their possession and that some of the requested discovery did not exist. He took them at their word and prepared his defense with the information he had been given, Westbrook said. It wasn’t until trial was well underway that Westbrook learned the prosecution’s response to his discovery requests was categorically untrue.

During the trial, the lead detective testified that he had talked to the confidential informant himself, contrary to his claims made under oath at the preliminary hearing, when he claimed that he didn’t know who the informant was or who he or she had tipped off. He then dropped a far bigger bomb: There were several other suspects in the case. In revealing this, he made clear that exculpatory information known as Brady evidence was never disclosed — a direct violation of the U.S. Constitution.

If prosecutors had produced that material evidence in the months leading up to trial, Westbrook says he could have prepared a stronger defense for Mr. J. The defense had argued that Mr. J wasn’t the perpetrator, but knowing that there were other suspects could have helped Westbrook make the case that another person was more likely to have committed the crime. Instead, Mr. J’s team was completely blindsided. “It’s one thing [for me] to say somebody else did it,” Westbrook explained. “It’s quite another thing to be able to investigate suspects that the detectives also believed may have committed the crime.”

Though she was court ordered and constitutionally required to dig into it, there is no way to know if Holthus was aware of the conversation between the detective and the confidential informant. She did not respond to requests for comment on the case. But the prosecution is required to learn about anything exculpatory in law enforcement’s case file.

“When this kind of thing happens, you get a lot of finger-pointing and buck-passing. The DA blames the detective for not telling her about the evidence or the defendant for not somehow, magically, getting the information himself,” Westbrook said. “This system of plausible deniability allows both the DA and the police to duck a finding of ‘bad faith,’ which is about the only finding that will get a case dismissed.”

Undermining ‘Fairness and Accuracy’

No matter what the reason is for a particular delay, late discovery disclosures occur nationwide and wreak havoc on defendants’ cases, says Jennifer Laurin, a criminal procedure and civil rights professor at the University of Texas at Austin School of Law. “We depend on the effective assistance of counsel so that a lawyer can scrutinize the other side’s evidence. Discovery in advance of trial is part of what enables that to happen,” Laurin told The Appeal. By the time a trial is getting ready to start, the defense has usually settled on a strategy based on the evidence in its possession. Discovery obtained right before or during trial can render that strategy moot, and gives the attorneys little time to review the evidence and adjust their plans accordingly. It undermines fairness and accuracy, Laurin said.

If defendants are detained pretrial, discovery violations can also cause damage long before a trial begins. The sooner prosecutors produce discovery, the sooner defense teams can scrutinize it and press for a defendant’s release, Laurin said. According to Westbrook, 92 percent of his clients are currently detained in jail pending trial. Defendants can spend extended periods of time behind bars if court proceedings are delayed because of late discovery. Pretrial detention also increases the likelihood that someone will take a plea deal. “The longer the delay, the more their resolve is broken down,” he said.

That is exactly what happened to Mr. J, who was never released after his arrest in September 2013. He went into the trial facing a life sentence, but after the last-minute disclosures about the confidential informant and alternative suspects, prosecutors offered him a deal. Westbrook encouraged him not to take it, and unsuccessfully pushed for the case’s dismissal. But faced with the prospect of spending a lifetime behind bars, a deal was too hard to pass up. In exchange for pleading guilty, Mr. J was sentenced to five to 20 years in a state prison — time he is still serving. Defendants nationwide often do the same, which empowers prosecutors to cheat over and over again. But it is simply impossible to know how many times a defendant could have been spared a conviction if prosecutors and the law enforcement officers they collaborate with were forthcoming about all the evidence they had.

The district attorney’s office says it has taken concrete steps to improve discovery production, such as creating a checklist of best practices. The checklist requires prosecutors to contact the opposing counsel for a file review, but the latter doesn’t have to accept the offer. The office also says public defenders haven’t taken advantage of a special subcommittee created in 2015 to review and refine discovery procedure, which Clark County’s chief public defender, Philip Kohn, chairs. But Kohn told The Appeal that his office hasn’t seen the discovery checklist, and that the subcommittee hasn’t convened because of prosecutors’ refusal to implement suggested reforms.

“Again and again, the DA simply came to the subcommittee unwilling to propose any reform suggestions, unwilling to consider reform suggestions, and unwilling to consider any rule other than one that removes the DA’s constitutional responsibilities to timely disclose evidence,” he said. The DA denies that reforms were proposed.

Meanwhile, public defenders are continuing to document discovery violations, but say there is no way to determine just how many defendants have been impacted. “We can’t see behind the curtain,” O’Brien said. “There’s just a big black void of what’s happening. We either trust that the system just works and we don’t question it at all, or we keep pushing for the idea that it should be transparent.”